The Court declined hearing counsel on the other side, and their opinion was delivered by
Prentiss, J.It is unnecessary to give any opinion upon the general question, whether actions on book account, brought to the county court by appeal from a justice, are to be referred to auditors, like actions of that nature originally commenced in the county court, or are to be tried, and the sum in arrear to be found by the jury; because, it appears from the record, that the reference to the auditor, in this case, was by the agreement and consent of the parties. The court has power to refer a cause by consent of parties in any case, and the proceeding in this case might well be considered in the nature of a rule of reference. Having agreed to the reference, and appeared and submitted to a hearing before the auditor, the plaintiff in error is bound by the proceeding, and is estopped to question its regularity. It has been held, that a writ of error will not be sus tained, where it is brought by a party against his agreement, or that of his attorney, made in the course of the action. (Wright vs. Nutt, 1 T. Rep. 388. — Coates vs. West, 2 T. Rep. 183.) And on the same principle, it ought not to be sustained, if founded on a proceedings which he has assented and agreed.
It would be a manifest inconsistency to hold, that a judge, acting as a contituent part of the court, can appoint himself auditor, or that the same person can act as judge and auditor in the same cause. On the return of the report, the court is to review the doings of the auditor, so far, at least, as it respects their legality, and either accept or set aside the report, as the case may require. To act in the capacity of auditor in adjusting the account, and then in the capacity of judge in hearing and determining upon exceptions to his report, would be palpably inconsistent. The respective duties are incompatible, and the same person cannot act in the two different capacities. But there appears to be no reason, why a judge of the court in which the action is pending, if he does not sit or act as such in the cause, may not be appointed, and perform the duties of auditor, especially with the consent of parties, as well as any other person. The other judges are a court without him, and his appointment as auditor, and judgment on his report, may be the acts of *120the court constituted of the other judges. And they must be taken to have been so in this case; for it does not appear from the record, nor is it assigned for error, that the auditor formed a par|. Q¡- {-¿g court ¡n any of the proceedings in the action. In-dee(3) he is not named as judge in the record, nor does it appear that he was such.'
Bates Turner and Benj. H. Smalley, for the plaintiff in error. Albert G. Whittemore and Israel. P. Richardson, for the defendant in error.Neither of the errors relied upon furnishing any sufficient cause for reversing the judgment, it must be affirmed.
Judgment affirmed.